The opinion of the court was delivered by: Kocoras, District Judge:
Plaintiff is a professional woodcarver from Woodstock,
Illinois. Examining the host of exhibits appended to the
affidavit which he has submitted, it appears that while plaintiff
does carve other birds, he specializes in ducks. Plaintiff's
ducks are of the highest quality. Some of them are described as
"exquisite" and sell for a great deal of money. Plaintiff's
Affidavit, Exhibits 1, 4. Plaintiff's name is T.J. Hooker. He
runs a business by the same name producing ducks and other wooden
creatures. Among aficianados of such art, plaintiff and his ducks
are "internationally renowned." Id., Exhibit 2 at 3, Exhibit 3.
Plaintiff has garnered such wide acclaim by dint of his fine
workmanship and his extensive promotion and marketing. Each year,
plaintiff sells "many hundreds of thousands of dollars worth of
wildlife art identified by his name." Complaint ¶ 10.
The defendants are Columbia Pictures Industries, Inc.;
Spelling-Goldberg Productions; and American Broadcasting
Companies, Inc. These companies produce and broadcast a
television series about a fictional policeman in California.
Never having heard of plaintiff or his celebrated ducks, the
defendants happened to name their imaginary policeman "T.J.
Hooker." Not surprisingly, the series is also entitled "T.J.
Hooker." Plaintiff admits that this choice of a name for the
character and series "may be a mere coincidence." Plaintiff's
Memorandum in Support of Motion for Preliminary Injunction at 7.
However, plaintiff thinks that he nevertheless has been wronged,
and he brings this action seeking to vindicate his rights. The
lawsuit revolves around the use of the name "T.J. Hooker." The
central theme in all four counts of plaintiff's complaint is that
"T.J. Hooker" is his name and the defendants cannot use it
without his permission.
Plaintiff grounds his claims for relief on four theories. The
defendants contend that plaintiff has failed to state a claim
under any of these theories. Accordingly, they have moved to
dismiss the complaint under Fed.R.Civ.P. 12(b)(6). Plaintiff, in
turn, has moved for a preliminary injunction under Fed.R.Civ.P.
65, seeking to enjoin the defendants from advertising or
broadcasting their show using the name "T.J. Hooker." As might be
expected, the defendants vigorously oppose this motion.
It is the plaintiff's name as a symbol of his
identity that is involved here, and not as a mere
name. Unless there is some tortious use made of it,
there is no such thing as an exclusive right to the
use of a name; and any one can be given or assume any
name he likes. It is only when he makes use of the
name to pirate the plaintiff's identity for some
advantage of his own, as by impersonation to obtain
credit or secret information, or by posing as the
plaintiff's wife, or providing a father for a child
on a birth certificate, that he becomes liable. It is
in this sense that "appropriation" must be
understood. It is therefore not enough that a name
which is the same as the plaintiff's is used in a
novel, or the title of a corporation, unless the
context or the circumstances indicate that the name
is that of the plaintiff. . . . Nor is there any
liability when the plaintiff's character, occupation,
and the general outline of his career, with many real
incidents in his life, are used as the basis for a
figure in a novel who is still clearly a fictional
Id. at 805-06 (footnotes omitted).
Similarly, the Restatement of Torts makes it clear that it is
not the use of the plaintiff's name which constitutes a tort but
rather the appropriation of the value of his name and reputation:
It is not enough that the defendant has adopted for
himself a name that is the same as that of the
plaintiff, so long as he does not pass himself off as
the plaintiff or otherwise seek to obtain for himself
the values or benefits of the plaintiff's name or
identity. Unless there is such an appropriation, the
defendant is free to call himself by any name he
likes, whether there is only one person or a thousand
others of the same name. Until the value of the name
has in some way been appropriated, there is no tort.
Restatement (Second) of Torts § 652C, comment c (1976) (emphasis
Examining Count I in light of the foregoing principles, it is
apparent that plaintiff has failed to allege a tortious
appropriation of his name. Plaintiff does allege that
"[d]efendants' . . . use of plaintiff's name appropriates the
right of publicity in plaintiff's celebrated name." Complaint ¶
22. But this broad, conclusory allegation cannot substitute for
allegations of facts showing that the defendants used the name
"T.J. Hooker" as a means of pirating plaintiff's identity. By his
own admission, the commercial value of plaintiff's name is in the
field of wildlife art. Complaint ¶¶ 9-12. Hunters, sportsmen, and
collectors identify plaintiff's name with fine carvings of ducks
and other fowl. There is nothing in the complaint which can be
construed as an allegation that the defendants adopted the name
"T.J. Hooker" in order to avail themselves of plaintiff's
reputation as an extraordinary woodcarver.
Plaintiff admits that the fictional television series at issue
here is a "police drama." Complaint ¶ 17. It is difficult to
imagine a subject further removed for the life of T.J. Hooker the
artisan. The facts and circumstances alleged by plaintiff provide
no basis upon which it can be found that the name "T.J. Hooker,"
as used in the defendants' fictional television series, in any
way refers to the real T.J. Hooker.
There being no well-pleaded allegation of appropriation of the
value of plaintiff's name, plaintiff has failed to state a claim
upon which relief can be granted. Accordingly, ...